11 S.D. 544 | S.D. | 1899
Wm. D. Yokum, plaintiff in error, was indicted, tried, and convicted of the crime of murder, and sentenced to imprisonment in the state’s prison for the term of his natural life. He brings the case to this court by writ of error issued to the circuit court of Butte county, and relies mainly for a reversal of the judgment of the court btelow upon alleged errors committed by the trial court in excluding evidence on the part of the plaintiff in error and in refusing and giving instructions to the jury. At the trial the plaintiff in error admitted the killing, and claimed that it was justifiable in defense of his person.
“Justifiable homicide” is thus defined by Section 6464, Comp. Laws: “Homicide is also justifiable when committed
It appears from the evidence in this case that on the first day of September, 1896, the deceased, one James C. Barnes, was engaged, in connection with one Sebastian, in keeping a saloon in the town of Belle Fourche, and the paintiff in error was a farmer living in that vicinity. On the afternoon of that day the plaintiff in error, whom we shall hereafter designate as .the “accused” was frequently in the saloon of the deceased, and he and the deceased had several drinks together. Between 6 and 7 o’clock the deceased and accused had some words in regard to the throwing of dice (presumably for the drinks), and the accused thereupon left the saloon, and remained standing on the sidewalk near the front door. Within a few minutes thereafter the deceased stepped to the door, and what then occurred is thus stated by one George E. Hail1, a witness on the part of the prosecution: “I was living in Belle Fourehe, September 1, 1896, and knew Barnes and Yokum. On September 1st I saw an altercation between them, in the evening, on the
After the state had concluded its evidence in chief, one Kittie Lambertson was called as a witness on the part of the accused, and after testifying that she had been acquainted with deceased for about five years, she was asked to state the custom or habit of deceased with reference to carrying firearms. This question was objected to as incompetent, objection sustained, and exception taken. Substantially the same question was repeated in the same form, and the same objection was made, same ruling, and exception taken. Counsel for the accused contend that the court erred in excluding this evidence, and that the error is such as to entitle the accused to a reversal of the judgment in this case. We are of the opinion, however, that the court ruled correctly in excluding this evidence Evidence of the character or reputation of the deceased, or that he was accustomed to carry firearms, is never admissible unless for the jDurjDOse of exiDlaining, characterizing, or illustrating an assault or an attack of the deceased upon the accused at or about the time of the homicide. It will be ob
The accused was then called as a witness in his own behalf, and after testifying to what was said in the saloon, and as to some words he had with the deceased at the door of the saloon, testified substantially as follows: “Barnes came out in about a minute, and said, ‘You are talking about me.’ I said, ‘No, sir: I am not.' ‘Well,’ he says, ‘that settles it.’ I says, ‘That settles it. ’ Barnes and Ike Lowry started off for a walk. A boy came along, and I made a noise with my
At the close of the trial, counsel'for the accused submitted to the court 27 instructions, of which the court gave to the jury 14, and refused to give the other 13. It is now contended by counsel for accused that the court erred in refusing to give the requested instructions. But, after a careful examination of the instructions given, the charge of the court given on its own motion, and the instructions refused, we are satisfied that the court committed no error in refusing to give the instructions asked by counsel, and marked ‘ refused.” Many of the instructions the court was requested to give were substantially embodied in the instructions given or in the charge of the court given on its own motion, and we find no instruction among the refused that was not in some form substantially given to the jury.
Upon the subject of justifiable homicide, a number of instructions were given, among which is No. 15, which reads as follows: ‘ ‘The court instructs the jury that the law is, if a person is assaulted in such a way as to induce in him a reasonable be lief that he is in actual danger of losing his life, or of suffering great bodily harm, he will be justified in defending himself, although the danger be not real, but only apparent. Such a person will not be held responsible criminally if he acts in self-defense, from real and honest convictions as to the character of the danger, induced by reasonable evidence, although he may be mistaken as to the extent of the actual danger. A. person need not be in actual imminent peril of his life or of great bodily harm before he may slay his assailant. It is sufficient if, in
The court in charging the jury upon his own motion as to the burden of proof upon the subject of justifiable homicide, uses the following language: “In this case, if the■ killing by the defendant be proven, as I have before stated to you, the burden of proving that it was justifiable or excusable devolves upon the defendant, unless the facts proven tend to show that the crime only amounts to manslaughter or that the defendant was justifiable or excusable. The homicide being proven, if you should believe at the time of the alleged assault the circumstances surrounding the defendant were such as would justify or induce in his mind an honest belief that he was in danger of receiving from the deceased some great bodily harm, and that in doing what he did he was acting from an instinct of self-preservation, if you should find this and believe this from the testimonj?, then the defendant would not be g.uilty of the crime charged.” As to this part of the charge counsel for the accused contends that “the court erred in instructing the jury as to the law governing the amount of evidence necessary to support the plea of justification or self-defense in charging that when the defendant admitted the killing, as in this case, and set up a plea of justification or self-defense, that the burden of proof shifted to the defendant, without instructing the jury, further, that when the burden of proof did so.shift, that it was